As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
In a weekend newspaper the argument was made that the Minister of Defence, Lindiwe Sisulu, had every right to boycott the Standing Committee on Public Accounts (Scopa), and that she could not be summonsed by Scopa to appear before it. This was, according to the writer, because all the provisions of the Constitution (including those that state explicitly state that cabinet ministers are accountable to Parliament and that Parliament can force anyone to appear before it) had to be read holistically against the background of chapter 3 of the Constitution.
Unfortunately this argument is clearly wrong-headed as it completely misconstrues the nature of the co-operative government provisions set out in chapter 3 of the Constitution.
Co-operative government is often referred to by members of the executive or other role players in order to justify interference with the work of independent bodies like the IEC or the NPA or in order to escape accountability and scrutiny. It is as if these provisions only apply to others and not to themselves (a bit like a King or Queen – or perhaps even a princess – of old who could say: “the law only applies to my enemies”). The Ginwala Inquiry made much of the fact that the NPA was an organ of state that was bound by the provisions of chapter 3 and therefore that the NPA had a constitutional duty to co-operate with the President and hence to obey his request not to arrest Jackie Selebi, completely missing the point that the President was also bound by the same provisions and was required to co-operate with the NPA.
(By the way, why has no journalist contacted former President Thabo Mbeki to ask him why on earth he defended Selebi so vigorously, why he wanted to stop his arrest at all cost, and whether he now regretted this, given the fact that Selebi has now been made the laughing stock of the nation after his hilarious cross-examination by the state?)
In any case, the sections in the Constitution on co-operative government are important as it influences the nature of intergovernmental relations in our democracy and ensures that the unitary character of our state is not threatened while it safeguards the rights of the various spheres of government. Sadly these sections are often misunderstood and are also sometimes abused by those who wish to make some or other political point. It might therefore be helpful to reflect on the nature of our system of co-operative government. Those who invoke the concept do not always realise that it applies equally to all role players.
Section 40 of the Constitution states that the government is constituted of national, provincial and local spheres that are “distinctive, interdependent and interrelated”. This means that different spheres of government (national, provincial and local) have distinctive powers and tasks but that they are required to work together in fulfilling their tasks because they are all part of the same unitary state. It does not mean they have to agree with each other or that institutions or individuals in one sphere with distinctive and exclusive powers have a duty to obey instructions from institutions or individuals in another sphere. A national Minister cannot order the mayor of a City to ensure that the road in front of her house is repaved, nor can she instruct the Premier of a Province not to close a specific hospital.
Section 41 states that all spheres of government and all organs of state within each sphere of government must, inter alia: respect the constitutional status, institutions, powers and functions of government in the other spheres… and co-operate with one another in mutual trust and good faith by: fostering friendly relations; assisting and supporting one another; informing one another of, and consulting one another on, matters of common interest; co-ordinating their actions and legislation with one another; adhering to agreed procedures; and avoiding legal proceedings against one another.
This means that each of the role players must do its work diligently and in accordance with the Constitution and the law and should not connive to undermine the other institution or individual who are doing their job. Where a dispute arises, the parties should try and sort it out and should not run to the courts without first trying to find an amicable solution in the spirit of co-operation.
In the case of Minister Sisulu, this means that Scopa should diligently and in accordance with the Constitution play its oversight role by holding Ministers politically accountable for the spending of money in their departments. This would often mean that Ministers will be invited to appear before them to provide information, answer questions and take political responsibility (along with some political heat) for what happens in their departments.
This is at the heart of the various provisions that provide for Parlaimentary oversight over the executive. As part of the system of checks and balances, Parliamentary Committees are empowerd by the Constitution to give members of the executive a hard time and even to embarrass them politically – it is all part of the system of separation of powers.
The Minister in turn has a Constitutional duty to account to Scopa and will have to appear and will have to account politically for the spending of money in her department. She cannot avoid this by refering to the provisions of co-operative government as these provisions do not water down the powers and functions of each distinct entity – it merely requires them to try and sort out their differences amicably.
Where the Minister refuses to assist Scopa in the exercise of its constitutionally mandated oversight function and where she refuses to be held accountable by Scopa, she is indeed in breach of the provisions of Chapter 3 as well as several other provisions of the Constitution that requires her to account to Parliament. Even then, Scopa must try and resolve this outrageous breach of the Constitution amicably. However, if the Minister point blank refuses to appear before Scopa, despite being legally and constitutionally required to do so, Scopa as a last resort has every right to summons the Minister. Nothing in chapter 3 of the Constitution prohibits this. It is rather peculiar, to say the least, that one would argue that the Minister would be able to rely on chapter 3 of the Constitution to justify her unconstitutional behaviour.
The problem with many people’s understanding of the co-operative government provisions in the Constitution is that they fail to grasp that every sphere of government and every organ of state have a duty to do what they are legally mandated to do and all others have a duty to respect this. The provisions of chapter 3 do not allow one sphere of government to act unconstitiutionally or to try and interfere with the constitutional duties of another.
Where, say, the NPA fulfils its duty to prosecute without fear, favour or prejudice – as Vusi Pikoli did with the issuing of an arrest warrant for Jackie Selebi – then the other spheres of government (including the President) has a duty to support him in this. If there is some disagreement about how this needs to be done, the parties must meet and discuss this and must try and find a solution (as Pikoli did with the Selebi fiasco), but because their roles are distinct, the one cannot tell the other how to do its job. That is why the letter wrtitten by Menzi Simelane and signed by the then Justice Minister ordering the NPA not to arrest Selebi was exhibit A in the case against Simelane who might very well have breached the NPA Act for which he could have been sentenced to 10 years in prison.
Co-operation does not mean usurpation. Neither can it mean that some organs of state will be allowed to abuse their powers to frustrate others from doing what they are constitutionally required to do. It thus means that a good-will effort must be made by all concerned to exercise their functions in a manner that is going to be in harmony with the exercise of other functions. Where this seems utterly impossible after good faith efforts have been made, well, see you in Court Minister Princess.BACK TO TOP